State v. Gieffels , 1976 Alas. LEXIS 405 ( 1976 )

BOOCHEVER, Chief Justice

(concurring).

Criminal Rule 6(r) provides in appropriate cases for the summarization of admis-sable evidence if that evidence will be available at trial. The rule states, however, that “[h]earsay evidence shall not be presented to the grand jury absent compelling justification for its introduction”.

I have difficulty with the portion of the opinion which equates the term “compelling” with “necessity” as far as the use of hearsay is concerned. The term “necessity” implies that if any means at all can be used whereby the testimony is produced by a live witness, hearsay may not be utilized. Certainly, there was no necessity for summarizing the technician’s testimony in McKinnon v. State, 526 P.2d 18, 27 (Alaska 1974), although I believe there was compelling reason not to require the presence of the witness. I would equate the term “compelling” as used in the rule as meaning “substantial”. As in so many other judicial decisions, I believe that the best result could be obtained here by a balancing test. Thus the importance of the particular testimony involved would be balanced against the expense and inconvenience involved in obtaining the testimony. The more important the testimony and the more vital it is to the determination to be made by the grand jury, the stronger the reason for the use of the hearsay must be. In the present case, it would seem to me that at least one of the witnesses who obtained admissions from Gieffels should have been present to testify in person. Expense, however, should be a factor to be considered, and the state should not be required to transport distant witnesses to Alaska when their testimony is cumulative or pertaining to peripheral matters. Such testimony should be capable of being summarized as specified in Criminal Rule 6(r). Possibly the majority opinion is intended to give that much leeway in the use of hearsay, but I am filing this separate concurrence to indicate my views.